“The issue of Guantanamo is not on the table”, testified the U.S. State Department official leading negotiations with Cuba, Roberta Jacobson, in an upfront, and obstinate message meant to be heard all the way in Havana at a House of Representatives congressional hearing. [1]

A long-awaited revival of U.S.-Cuban relations following the Obama Administration’s gradual easing of the half-century embargo against Cuba has kick-started a modest dialogue surrounding the normalization of economic relations between the two countries. While it is certainly an impediment to an agenda on any U.S.-Cuban relations, the economic embargo is not the only factor that inhibits a diplomatic rapprochement. Another long-standing obstacle in the contentious relationship between Washington and Havana that fuels the simmering indignation among Cuban authorities is the continued U.S. occupation of Guantanamo.

Addressing a boisterous crowd of supporters on the anniversary of the 1959 Cuban Revolution, first Vice-president José Ramón Machado Ventura exclaimed: “We will continue to fight such a flagrant violation…Never, under any circumstance, will we stop trying to recover that piece of ground”. [2] The longstanding impasse on this issue signifies a clear obstruction to the normalization of relations. But with statements coming from Congress expressing no interest whatsoever in resolving the issue of the base, can the United States truly advocate for the reestablishment of relations with Cuba while simultaneously ignoring a territorial dispute that predates the economic embargo and remains of monumental importance?
History of Guantanamo Bay: The Cuban Revolution Still Matters

The U.S. Guantanamo naval base in Cuba presents a stark paradox as the U.S.’s oldest overseas naval base, and also the only U.S. naval facility in a country with which the U.S. has no formal diplomatic relations.[3] The naval base in Cuba represents a broader struggle between the remnants of a former Cuban colonialist government that was entirely submissive to Washington, and a post-revolutionary Castro government that refuses to let the United States interfere in silence as the rest of the Cuban political sphere boils in dissent.

In fact, the history of the Guantanamo base echoes the quarrel between the rising American empire and the withering away of the Spanish Empire. In an effort to restrict Spanish ambitions in Cuba, Washington seized official control at the end of the Spanish-American War in 1898.[4] From then on, there was a series of conditional amendments and treaties that confirmed the American presence in the region. Washington issued the notorious Platt Amendment in 1901, allowing the United States to retain its military presence while claiming to be an advocate of Cuban independence. The core of the agreement reserved the right of the United States to intervene in Cuban affairs and annexed land to the United States.[5] Subsequently, the Treaty of 1909, a lease agreement signed by the United States and Cuba, authorized the use of Guantanamo for naval and coaling stations under the presumption that a U.S. military presence could maintain stability in the region and deter further Spanish incursion.

Similar to many countries in the Western Hemisphere, the U.S. government claimed that stepping on the sovereignty of its neighbors to the South was justified in order to achieve greater hemispheric stability. This sentiment is highlighted in article VII of the treaty which, “Enables the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense.”[6]

The conditions issued from the lease agreement were unequivocally tailored in favor of the United States, granting Washington inextricable autonomy in the area. The U.S. openly admits to this stark contradiction in Article III stating:

“While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United states of said areas under the terms of this agreement the United states shall exercise complete jurisdiction and control over and within said areas.[7]

Furthermore, a second treaty that was ratified in 1934 allowed for greater autonomy of the U.S. Guantanamo base by canceling the termination date of the lease. This means that, even if the Cuban government unilaterally calls for the return of the Guantanamo territory, they will never be able to cement this policy unless the U.S. is in mutual agreement. Therefore, this arrangement protects U.S. economic interests as well as reserving U.S. rights in the territory.

But once the regime transitioned in Cuba, after Fidel Castro’s successful revolution, Guantanamo was brought to the forefront as another grievance among many against U.S. foreign policy in the region. The territorial dispute, in fact, was an inadvertent impetus that ignited the revolution against U.S. imperial ambitions in Cuba.[8] Castro subsequently called for the territory to be returned to Cuba, cautious of a continued U.S. presence that could serve as a base to spy on Cuban officials and present a pretext for further military incursion. The U.S. responded by prohibiting U.S. personnel stationed in Guantanamo from entering into Cuba, which in turn further segregated the area, fueling isolationist tendencies of the Cold War.

Developments in the territorial battle were stagnant until the Clinton Administration enacted the Helms-Burton Law in 1996, in which it was implied that the U.S. would only return the territory of Guantanamo to Cuba if Havana met its demands of regime change, replacing the Castro government with a politic more akin to the United States.[9]

Thus, with Castro unwilling to comply with such conditionalities, and Washington unwilling to accept the sovereignty of the Cuban government, the issue remained unresolved. This dispute also attracted international visibility due to the U.S. government’s decision to transform the naval base into an extrajudicial detention facility far from U.S. courts in order to freely practice torture on the proclaimed prisoners of the “War on Terror.”[10] It maintained the argument that because it was not on U.S. territory, it had the right to operate the facility under unofficial discretion irrespective of U.S. constitution and law. This contemporary global fixation on the Guantanamo Bay detention center effectively distracts international attention away from the root territorial legal battle between Washington and Havana.
The Cuban Perspective: A Catalyst for U.S. Opposition

Governmental officials not only opposed the U.S. annexation of Guantanamo Bay, but the base also faced opposition from ordinary Cubans. This was greatly emphasized in the protests that ensued following the Platt Amendment arrangement between Havana and Washington in the early 1900s. This stark display of U.S. dominance in the region sparked outrage throughout the nation, further galvanizing support for an alternative to U.S.-led governance. In fact, in December 1933, demonstrators destroyed three trains with government supporters onboard, resulting in the deaths of at least two people.[11] Mainstream opinion amongst Cubans regarding the legality of the U.S. and Guantanamo is that the Cuban revolution, which overthrew the former pro-U.S. Batista government, invalidated any previous agreements or treaties with the United States. Since the Cuban revolution was partly fought to reverse the pro-U.S. stance of the former government, all previous agreements with the U.S. are presumed nullified following the revolution. Because the pre-Castro regime of Fulgencio Batista was regarded as too dictatorial and illegitimate, agreements with the U.S. prior to the revolution are further justified as void. As a matter of fact, Batista was notoriously passive in letting the U.S. continue to exercise jurisdiction over the territory, provoking waves of resentment throughout Cuban society.[12]

However, the U.S. continues to pay the yearly lease of $4,085 USD while the Cuban government discards checks sent from the U.S. in an act of protest and defiance towards the presumed outdated treaty. Given that the United States still sends their checks to the “Treasure General of the Republic”—a pre-revolutionary position that was dismantled after the Castro government took power—the checks are essentially meaningless as addressed to a non-existent institution.[13]

Additionally, the 1977 treaty signed by the Carter Administration to secede official jurisdiction of the Panama Canal to the Panamanians established a precedent of demand for similar action in Guantanamo.[14] The leasing of the Panama Canal occurred around the same time as the leasing of Guantanamo under the Roosevelt Administration, adding chronological legitimacy to the Cuban argument. Pointing to U.S. hypocrisy, some have been left wondering why the Panama Canal lease was nullified and returned to Panama while the Guantanamo lease remains under absolute U.S. authority.[15]

Internationally controversial activities currently occurring in Guantanamo serve as yet another source of legitimacy for the Cuban authorities and their oppositional stance. Because the United States has extended their operations in the territory from a naval base to an extrajudicial detention facility, and has established commercial activities in the base, Cuban authorities hold that the current state of the territory has transcended its primary purpose.[16]
United States Perspective: Is it Still a Lease if Nobody Gets Paid?

The U.S. government believes that due to its continued payment of the lease, it still maintains the right to use the land for military purposes. As previously stated, the Cuban government refuses to accept these checks, and refutes U.S. claims that the acquisition of the land is legitimate. The U.S. contends that the Castro government did in fact cash one of the checks to secure the lease of the land following the revolution. Castro reacted to this claim by explaining that he had merely signed the first lease of the newly formed government by mistake.

Current politicians opposing negotiation with Cuba regarding the naval base, such as Senator Marco Rubio, retain the conviction that “Guantanamo Bay plays an integral part in our ongoing effort to safeguard America, and it is critical that this facility remain open and operating.” His statement conveys the reoccurring sense of U.S. ownership of the territory that is frequently justified by national security concerns.[17]
International Law: An Opportunity for Legal Appeal

The Cuban government claims that the retention of the Guantanamo territory violates international law. In fact, UN Ambassador to Cuba Bruno Rodriguez Parilla appealed to the UN Human Rights Council in May 2013 regarding the illegality of the continued military base on Cuban land, advocating that it should be rightfully returned to Cuban control. [18]This international legal debate is essentially a conflict of interest regarding treaty provisions. Since 1959, Castro’s government has based their argument on article 52, section 2 of the Vienna Conventions on the Laws of Treaties, which states: “a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” [19] Therefore, the original Platt Amendment can be considered as a threat, given that it was an ultimatum, and refusal to sign the document would mean a complete infiltration of the island.

Secondly, the Cuban government could invoke the Rebus Sic Santibus clause of section 3, article 62 which states that a treaty cannot be withdrawn due to a fundamental change of circumstances, unless “the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty.”xx Because a revolution occurred that altered the previous government, the aforementioned bilateral consent necessary for the validity of the treaty could be considered nullified.

However, article 4 states the “non-retroactivity of the present convention”:

“Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.”[20]

This means that all the international treaties contracted before the Vienna Convention are not bound by the rules of the Vienna Convention. Therefore, a State could not invoke an article of the Vienna Convention to claim anything regarding preexisting treaties prior to the convention.

Legally speaking, and without reference to the Vienna convention, it is possible to claim that Cuba is no longer tied by the treaty due to the reciprocity principle, an element of international law that does not consider the juridical effect of a treaty applicable until all the contractors respect its rules simultaneously. If a state fails to respect a section of a treaty, the other signatory state may invoke this detail to free itself from any obligation pertaining to the treaty. With this in mind, it is important to note that the 1903 Cuban-American treaty only authorizes the settlement of an American Naval base, and not the construction of a detention camp. Accordingly, the United States is in violation of the international agreement. Even if the latter argument does not hold, it is necessary to emphasize that Cuba does not recognize international law as its highest source of the law.[21]Therefore, an international treaty remains valid so long as Cuba recognizes its application.
Conclusion: Guantanamo Blocks Reestablishment of the U.S.-Cuba Relationship

Following President Obama’s recent initiative to reestablish cordial relations with Cuba, the status of the Guantanamo naval base is likely to be a critical subject in the talks between the two states. White house officials, however, have made it clear that they are not willing to make concessions with Cuba regarding the current status of the military base, explicitly stating that Guantanamo is “not part of the bargain”.[22] Continuing in the footsteps of his predecessors, President Obama remains adamant that the retention of the Guantanamo naval base is integral to U.S. national security with no modicum of shifting rhetoric that suggests a more conciliatory approach. The Obama administration has, however, dedicated time and effort to close the Guantanamo detention facility, which remains a necessary first step in the disengagement process. Barack Obama initially expressed his desire to close Guantanamo in 2008, but has never managed to gather the required support from Republicans in Congress, who routinely block progress on the issue. Furthermore, the legal status of prisoners remains problematic given that very few of the 155 detained have ever been granted a proper trial, creating a legal grey area.[23]

Nonetheless, these efforts must not be misinterpreted as the return of territory to Cuba. This detail presents a dichotomy within the negotiation process. On one hand, Obama’s campaign to soften the economic embargo is a step in the right direction for the peace process; contrarily, failure to recognize the incongruity of the longstanding territorial dispute will only undermine any comprehensive ambitions of reconciliation. Professor Jeffery A. Engel, expert on U.S. diplomatic history at the Southern Methodist University of Dallas, argues the territorial dispute has “been a sore point in the national psyche for the Cubans. In some ways the base is a reminder of Cuba’s broader colonial legacy, which fueled much of the communist revolution to start with.” [24]

While the conventional debate regarding the human rights concerns in Guantanamo Bay is certainly imperative, its larger contextual impact on U.S.-Cuban relations should not be overlooked. Former U.S. Foreign Service Officer Michael Parmly notes that this issue is “intimately related to Cuban nationalism, to Cuban identity, to Cuban self-image, to the present-day Cuba and, most importantly, the Cuba of tomorrow.” With such a deep sentiment for the Cuban sense of independence, the retention of the naval base has inevitably created perpetual rifts that undermine any sort of comprehensive effort to reconcile relations between Washington and Havana. [25] If the Obama administration capitalizes on this opportunity to improve relations by recognizing the rightful return of the territory to Cuba, then perhaps a Cuban government highly skeptical of U.S. motivations could place more trust in the United States.

At a recent summit of the Community of Latin American and Caribbean States, President Raul Castro responded to U.S. ambitions of improving bilateral relations stating that “diplomatic rapprochement wouldn’t make any sense” if the Guantanamo naval base issue is not included in the negotiations.[26] When asked about the President’s intentions regarding the base at a White House press-conference following Castro’s statements, White House Press Secretary Josh Earnest said “the president does believe that the prison at Guantánamo Bay should be closed down. … But the naval base is not something that we believe should be closed.”[27] If proceedings on the gradual lifting of the embargo continue as planned, Washington must inevitably face the road-block that Guantanamo presents. Reevaluating its preconceived territorial claim on Cuban land would demonstrate to the Cuban government that the United States can finally recognize Cuba’s right to self-determination. All in all, the U.S. occupation of the Guantanamo naval base represents an archaic colonial relic that is incongruous with a post-colonial era of independence and sovereignty.[28]

*Timothy Keen and Paul Gioia, Research Associates at the Council on Hemispheric Affairs.

[16] “Carter agrees to transfer Panama Canal to Panama”, History, accessed January 28, 2015 ; “Statement by the government of Cuba to the national and international public opinion”, Grandma International, accessed January 28, 2015

COHA, or Council on Hemispheric Affairs, was founded in 1975, the Council on Hemispheric Affairs (COHA), a nonprofit, tax-exempt independent research and information organization, was established to promote the common interests of the hemisphere, raise the visibility of regional affairs and increase the importance of the inter-American relationship, as well as encourage the formulation of rational and constructive U.S. policies towards Latin America.